The National Labor Relations Board has held that Telsa must allow employees to wear shirts with a union insignia while on the job. The decision is certainly a learning opportunity for employers and a strong signal of the approach to these issues likely to be taken by the Biden Board. Let’s look at the facts.
Under Tesla’s existing uniform policy, employees were permitted to wear either company-provided shirts bearing Tesla’s logo or all black clothing that is mutilation-free, work appropriate, and poses no safety risks. However, according to several employees at the company’s Fremont, California facility, Tesla did not enforce the dress code, and workers frequently wore shirts displaying the logos of other companies.
Employees also alleged that amid a union organizing campaign in 2017, Telsa reportedly began to “strictly enforce” the policy against employees wearing shirts displaying the union’s logo and campaign slogan. In defense of the enforcement of its Policy, Tesla relied on a recent NLRB decision, which held that employer rules regarding the size or appearance of union logos, but that do not forbid their display altogether, should be analyzed under a more lenient standard.
The Board rejected the application of the more lenient standard and overruled its own very recent decision on this issue. The Board, relying on Supreme Court precedent to justify its position, held that Tesla violated the National Labor Relations Act by strictly enforcing its policy with respect to union insignia. According to the Board, the previous decision was flawed because it treated the display of union emblems as a privilege, rather than a right. Thus, Tesla violated the NLRA by restricting employee rights.
Employers, union and non-union alike, will need to be sure to analyze existing dress code and attire standards in light of the Board’s new approach to union insignias and displays.